FEDERAL COURT OF AUSTRALIA

CMA17 v Minister for Immigration and Border Protection [2018] FCA 655

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

LEE J:

A    Introduction

1    The Acts of the Apostles (Acts 9:1-19) refers to St Paul’s journey from Jerusalem to Damascus seeking out the followers of Jesus, with the intention of arresting them so “he might bring them bound unto Jerusalem”. The journey is interrupted when St Paul (then known as Saul) sees a blinding light, and is converted (hence the common expression, a ‘road to Damascus’ conversion). This appeal, at heart, involves a contention that the inappropriate dismissal of the appellant’s account of what might be described as a Pauline or relatively quick conversion to Christianity was arbitrary and without logical foundation, and led to jurisdictional error.

2    The orders made by the Federal Circuit Court, which are the subject of appeal, dismissed an application which had advanced contentions that the Immigration Assessment Authority (IAA) committed a number of errors. The decision of the IAA was made in May 2017 and affirmed a decision of a delegate of the Minister made in November 2016 to refuse the appellant a protection visa.

3    Consistently with what had occurred before the primary judge, a number of grounds were initially raised in the grounds of appeal to this Court. With commendable economy and attention to the overarching purpose as reflected in Part VB of the Federal Court of Australia Act 1976 (Cth), the appellant’s solicitor, Mr Dobbie, concentrated on the point of most substance, disavowing reliance on the other grounds of appeal. Accordingly, the only ground of appeal pursued was in the following terms:

1. The learned judge erred by finding that decision of the Immigration Assessment Authority was not irrational and or arbitrary and or unreasonable.

Particulars

(A) The Appellant pleaded that the decision of the Immigration Assessment Authority (‘the IAA’) was unreasonable, arbitrary or unreasonable because the IAA had acted as the arbiter of faith, evident by its finding that the Appellant was not a genuine convert to Christianity because he was baptised before an unstated period of time had transpired, that unstated period of time being a measure personal to the decision maker.

(i) In dismissing the application, the learned judge erred by finding that the IAA’s reasons did not reflect its personal views, but instead was merely an adverse finding arising from adverse credibility findings.

Particulars:

(B) The Appellant pleaded that the decision of the IAA was unreasonable, arbitrary or unreasonable because, despite the Appellant providing evidence that he was a genuine Christian, the IAA found that it was not satisfied that the Appellant had any genuine interest in Christianity, without providing any reasons as to how it came to that conclusion.

(i) In dismissing the application, the learned judge erred by finding that the IAA’s finding that it was not satisfied that the Appellant had any genuine interest in Christianity was merely an adverse finding arising from adverse credibility findings.

(Uncorrected)

4    I note for completeness that even though the error alleged was particularised in slightly different ways, it was accepted by Mr Dobbie that it amounted, in substance, to the one contention.

B    Consideration

5    At [25] of the decision and reasons of the IAA, the following appears:

I have found that in Iran the applicant did not engage in any Christian activities with members of the Armenian Church and note that he was raised in a very strict Islamic family who supported the Iranian government. I note that the applicant was baptised in April 2013, shortly after arriving in Australia and only a few months after first attending a Baptist church. I do not accept that at the time he was baptised, the applicant would have had a sufficient understanding of the faith or what was involved in being a practising Christian or in being baptised, to make an informed and genuine commitment to Christianity. After considering this and also taking into account that the timing of his increased Bible study activity occurred around the time of his PV application, I am of the view that that in Australia the applicant has attended church services, Bible study and was baptised solely for the purpose of strengthening his claims to refugee status. I must therefore disregard this aspect of his conduct pursuant to s.5J(6) of the Act.

(Uncorrected)

6    The complaint made by the appellant is that the findings contained in the above paragraph were not rational, were arbitrary and unreasonable, and that the primary judge fell into error in failing to reach that conclusion. It is said, in effect, that the IAA acted as “an arbiter of faith” in relying on the assumption that a period of time is required, selected arbitrarily by the IAA, before the appellant’s conversion could be considered genuine.

7    The appellant’s argument has some superficial attraction. On one level, unpacking the component parts of [25] of the IAA’s reasons, identifies apparent assumptions that some level of understanding of the Christian faith (or particular understanding of what is involved in being a practising Christian) was connected, as a matter of logic, to the genuineness of a commitment to Christianity, which, in turn, was material to the genuineness of the appellant’s baptism. At first glance, it also apparently has, as a component of its reasoning, the notion that there is a conclusion that can be rationally drawn by reason of the fact that only a short period elapsed between the appellant arriving in Australia and his baptism.

8    In isolation, it might be thought that these assumptions may not necessarily be soundly based, in particular, as to the likely extent of knowledge about Christianity and the Christian tradition usually exhibited by someone receiving the rite of baptism (which, in most parts of the Christian tradition, occurs during infancy), that a speedy or Pauline like conversion lacks credibility, and that baptism into the Christian faith is somehow a destination, rather than the commencement of a journey.

9    Despite the superficial attraction of the appellant’s argument and the cogency with which it was argued, the argument does not, however, withstand close analysis. Not only does [25] have to be read fully, it also has to be seen in the context of the decision and reasons generally, and also with some appreciation of the findings of fact that were initially made by the delegate to refuse a protection visa, because the appellant was not a person to whom Australia owed protection obligations. Under the heading “Religion” in the decision record of the delegate’s decision, the following was said:

The applicant claims he was introduced to Christianity by a group of Armenian Apostolic Christians who engaged in evangelical activities with Shi’ite Muslims in Iran. This claim is inconsistent with commentary from DFAT that the Armenian Apostolic church does not allow an apostate to join their congregation. It is submitted in a written statement provided in support of the applicant's protection claims that his girlfriend in Iran (Sherlin) was not afraid of being harmed by Iranian authorities after the arrest of apostates in May 2012 that she had been proselytising because she was born as a Christian. This written statement is inconsistent with assertions made by the applicant at the PV interview that took place on 18 October 2016 that Sherlin understood her evangelical activities in Iran were potentially dangerous. The applicant maintains he stayed in Iran for a period of four months after allegedly discovering that other Christian converts known to him had been arrested by Iranian authorities because he did not initially fear being persecuted by Iranian authorities for religious reasons; even though people he knew with the same profile had been differentially targeted and seriously harmed by Iranian authorities for religious reasons. Furthermore, the applicant had no difficulty obtaining an Iranian passport shortly before he left Iran in September 2012, he used this passport to depart Iran legally, and, in general, it can be problematic for a person who is of adverse interest to Iranian authorities to leave Iran without difficulty. Having considered the available evidence, I consider: material claims made by the applicant about his religious experiences in Iran run counter to credible country of origin information; there are significant internal inconsistencies in information provided by the applicant is support of these claims; and the conduct of the applicant in the months leading up to his departure from Iran is inconsistent with the actions of a person with a genuine fear of religious persecution. Accordingly, I do not accept: the applicant was introduced to Christianity when he was living in Iran by a group of Armenian Apostolic Christians; the applicant ever engaged in Christian activities or practices in Iran; or, the applicant genuinely feared religious persecution in the period leading up to his departure from Iran en route to Australia. Nor do I accept that the woman whom the applicant claims was his girlfriend in Iran (Sherlin) was arrested and interrogated by the Basij due to her evangelical activities after the applicant’s departure from Iran.

The applicant has provided documentary evidence that he was baptised at the Liberty Baptist Church in North Rocks on 14 April 2013 and I have no reason to doubt the authenticity of this document. However, statements made by the applicant at the PV interview held on 18 October 2016 indicate he has not been a regular parishioner at that church since his baptism and work obligations have taken preference over the manifestation of his claimed Christian beliefs. Furthermore, statements made at the PV interview held on 18 October 2016 indicate the applicant’s knowledge of Christianity is limited and the claimed increase in his attendance at Bible study coincides with the date that he applied for a Safe Haven Enterprise visa. Having considered all of the available evidence, I consider the applicant is a broadly unreliable witness who did not have a genuine interest in Christianity or engage in any Christian activities when he was living in Iran. I find the applicant has engaged in Christian activities in Australia for contrived reasons and the sole purpose of this conduct is to strengthen his protection claims. Accordingly, this conduct engaged in by the applicant in Australia is to be disregarded in determining whether he has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act.

In my view, the applicant does not have a genuine belief in Christianity and he has engaged in Christian activities in Australia for contrived reasons. There is no evidence before me which indicates the Christian activities that the applicant has engaged in during his temporary residency in Australia have come or will come to the attention of Iranian authorities if the applicant returns to Iran. Furthermore, I do not accept the applicant engaged in Christian practices when he was living in Iran and I consider the applicant has no intention of engaging in Christian practices if he returns to that country. Therefore, I find the applicant does not have a genuine fear of being subjected to serious or significant harm for religious reasons if he returns to Iran.

(Uncorrected, footnotes omitted)

10    These paragraphs quintessentially involve a credibility assessment based on a number of factors which reveal significant internal inconsistencies in the appellant’s claims, including the apparent lack of difficulty in obtaining an Iranian passport shortly before he left Iran and his religious experiences being contrary to what was considered to be credible country of origin information.

11    The decision-maker did not doubt the fact of the baptism, nor was the appellant interrogated on tenets of Christian belief. Note was taken, however, of the fact that he had not been a regular attendee at the church and had prioritised work obligations over any devotional activity. Although reference was made to the appellant’s knowledge of Christianity being limited, read fairly, the conclusion drawn was that, having considered a range of material, the appellant was considered to be a “broadly unreliable witness, who did not have a genuine interest in Christianity” and has “engaged in Christian activities in Australia for contrived reasons and for the sole purpose” of fashioning his activities to suit the perceived exigencies of his protection visa claims. Put another way, the conclusion was reached that the appellant was engaging in his Bible study activities for the purpose of strengthening his claim to be a refugee.

12    It followed from this that the delegate concluded that the conduct engaged in by the appellant in Australia was to be disregarded by reason of the application of ss 5J(1) and (6) of the Migration Act 1958 (Cth), which provide:

5J    Meaning of well-founded fear of prosecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;

…

(6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

(Bolding in original)

13    When the matter came before the IAA, it made a series of findings, based on the record, relevant to the credibility of the appellant. For example, it:

(a)    found that the appellant’s claims to have participated in demonstrations in 2009 and to have been arrested and detained by the Basij were implausible, given that no mention had been made of this during his entry interview: at [13]-[15];

(b)    found that despite frequent encounters with the Basij in his neighbourhood, the appellant was not arrested or detained, and that he was not of any ongoing interest to the Iranian authorities: at [20];

(c)    did not accept the appellant had suffered psychological harm in the past, noting there was no material before it that the appellant had been formally diagnosed or received treatment, and that he completed education to a vocational level, and been employed in various roles: at [22];

(d)    did not accept as plausible that the appellant’s girlfriend had encouraged him to attend house meetings, or had helped him to sneak into an Armenian church given that such conduct was unlikely (given the attitude of the Armenian Church towards converts and those considered to be apostates to the Muslim religion in Iran): at [18];

(e)    found that the appellant had not engaged in any Christian activities with members of the Armenian Church, including converting to Christianity (see [18]), nor renounced Islam and converted to Christianity (see [19]).

14    It is against this background that the comments at [25] must be read. The IAA’s reasoning focused on the timing of the appellant’s Christian activities after his arrival in Australia, and placed weight on the fact that the appellant had been baptised only a short time after his arrival, and only a few months after he attended a Baptist church (see [25]). I accept the force in the submission that it does not necessarily follow that just because a short period had elapsed from the time the appellant first attended church to baptism, his Christian commitment was contrived. But the finding as to the genuineness of the appellant’s Christian activities in Australia must be seen in the context of the other findings including that the appellant had not engaged in any Christian activities in Iran, that he had been raised in a very strict Islamic family and that his increased Bible study appeared to coincide with his protection visa application (see [25]).

15    In these circumstances, it seems to me that what, at its heart, is a credibility finding, was open to the IAA. It is uncontroversial that the IAA is entitled to consider the inherent improbability of events in reaching a conclusion concerning the credibility of a person in the position of the appellant: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282.

16    The threshold for making out the ground of appeal based on illogicality or irrationality is not easy to surmount: see Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [34]-[36] per Gilmour and Mortimer JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ. The relevant test, of course, was set out in the joint judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 648 [131] as follows:

the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

(Emphasis added)

17    Their Honours went on to say (at 649-650 [135]) that:

A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

18    While the IAA may have come to a different conclusion based on the evidence before it, the conclusion it ultimately reached was logically based and it cannot be said that only one conclusion was open. Accordingly, in these circumstances, the core contention of the appellant that there was a lack of any logical or rational basis for the IAA’s conclusion is unable to be sustained. It follows that the primary judge did not fall into error in rejecting this argument below.

C    Conclusion and Orders

19    In all the circumstances, the appeal must be dismissed with costs.

Associate:

Dated:    11 May 2018